Navigate:

Supreme Court health care debate: If the law fails, what's next?

If the mandate is overturned, labor and environmental laws could be next. | AP Photo

Randy Barnett, a law professor at Georgetown University and early critic of the constitutionality of the health law, also disputed the possibility of a domino effect if it falls.

“If the court says Congress went too far, it would be a huge symbolic victory for the principle that Congress has limited enumerated powers, but because they’d only be striking down this thing no one has ever done before, it won’t affect any other law ever passed in the history of this country,” Barnett said. “Every law that’s on the books will stay on books. It won’t undermine anything Congress might want to do.”

Text Size

-

+

reset

The lawsuits challenging the health law argue that the measure exceeds Congress’s power under the Commerce Clause of the Constitution. But Lazarus said the core issue is more ominous: He believes the challengers are signaling that individuals have the right not to be touched by federal regulation and maybe by state regulation, as well.

“It’s not really about the Commerce Clause,” Lazarus said. “This challenge is about the idea that the mandate is some kind of enormous interference with individual liberty.”

Tushnet said the court could strike down the law in a way that would cause minimal collateral damage or could have a broader impact.

“You need to know exactly why they end up saying it’s unconstitutional, if they do,” Tushnet said. “The answer could be anything from no implications for anything else to opening up the existing state of federal regulatory intervention to quite widespread questioning.”

An “expansive” ruling could jeopardize laws including the Endangered Species Act and the Clean Water Act and might even rein in federal regulation of the labor market, Tushnet said.

Some legal experts who believe the individual mandate is unconstitutional concede that a ruling against it could have some wider impact but say liberals’ warnings of a return to the Lochner era amount to “the sky is falling” scare tactics.

“Those are quite weak arguments,” said Ilya Somin, a law professor at George Mason University. “This will have a significant effect in terms of preventing Congress from enacting all sorts of future mandates that could benefit politically influential industries and interest groups, but in terms of its effect on previously enacted programs, the effect is going to range from nothing at all to minor.”

Somin said upholding the law could lead to future mandates, such as requirements to buy health food or gym memberships. “There’s lots of evidence that diet and exercise have a lot more impact on health than whether we have insurance,” Somin said. “I can’t completely rule out the possibility that a Supreme Court decision on the mandate could have an impact on [environmental laws], but I think that’s relatively unlikely.”

While the likely impact of the court striking down the individual mandate is hotly disputed, there seems to be a broader consensus that a Supreme Court ruling tossing out the health law’s expansion of Medicaid would have more profound and direct consequences. Even some Republicans who opposed the overall bill say such a ruling would create major doubts about federal efforts to impose conditions on everything from highway funds to education programs.

“If the Supreme Court accepts the states’ argument, a host of constitutional questions will surround the operation of many federal funding streams to the states,” Sen. Chuck Grassley (R-Iowa) said on the Senate floor late last year of the Medicaid provision. “It would be difficult to overstate the significance of such a ruling.”

Readers' Comments (1202)

Whats next is getting rid of the people that wrote it behind closed doors and shoved it on the majority of Americans who are against it!They expressed what they think of your opinions now its our turn! Its like Afghanistan,what ever the people dont want doesnt matter ..VOTE THEM OUT!

If you spend any time reading the history surrounding the drafting of the Declaration of Independence and the Constitution of the United States you will discover that the "framers" of those documents had a profound distrust of government of nearly every kind and an even greater distrust of humankind and our collective or individual ability to resist the implications of power.

So when they drafted these human existence changing documents they created a Federal Government that was absolutely limited in its and scope. Indeed, most of the Constitution is a series of very specific prohibitions specifying what the Federal Government could not do and, more importantly providing, that whatever was not clearly delineated as the exercise of the Federal Government was left to the "several states" and more importantly "to THE PEOPLE."

Nearly all of the signatores to the Constitution were men who understood the ultimate weakness of all humans to succumb to the heady influence of power. As a result the documents carefully carved out a very limited role for the Federal Government. In a not so subtle irony, these very same men, who did not think of black slaves and "commoners" as fully potential participants in our future; and who generally believed all of the Constitutional principles they identified should be applied to the aristocratic, white, landed gentry of the time; would look back now in amazement to find that these lofty principles have embraced entire portions of a populace not intended for that participation.

Never-the-less, over time these principles have been applied, as evenhandedly as humanly possible, to the larger population. However, the general presumptions of that august original body of work still apply.

I think it was Will Rogers who said: "The best government is the government that can do the least to ya'." The "framers" of the constitution meant for the governmental entities that were the closest to "THE PEOPLE" should hold the greatest power; and that those governmental bodies (the Federal Government) that were the furthest from "the people" should hold the least. It was assumed that the "several states" should have regulatory power over nearly every facet of governmental life and not the Federal Government. The Federal Government was to have the responsibility to "Provide for the Common Defense, and provide for the general welfare (I don't think they meant "welfare" in the sense we mean welfare now).

The Federal Government of today does not in anyway resemble what the "framers" intended and the further afield we get from the original intent the more likely our individual liberty will be abbreviated.

If the Supremes decide that the ObamaCare mandate is unconstitutional, then I assert that they would consider cap-and-trade to also be unconstitutional.

The argument for unconstitutionality of the ObamaCare mandate is that it compels citizens to enter a market and initiate new commerce (health insurance in this case)--which means that the government's power over our economic choices is virtually unlimited.

Liberals have retorted that you enter the health care market anyway, since everybody needs health care. But that argument won't work for cap-and-trade. There, the government is creating an artificial new market of CO2 emissions permits which never existed before, and forcing all businesses to enter that market and trade those permits. If the Supremes rule that you can't be compelled to enter a market that you wouldn't otherwise enter, then cap-and-trade is clearly unconstitutional.

Therefore, whether it's fighting global warming or health care, the only constitutional way to do it is by the tax system. We pay payroll taxes to finance Medicare. We'll have to pay carbon taxes to fight global warming.

Gee, I dunno, maybe we try something that might actually work? You know, if you all wanted to cut my reimbursements without blowing up your own care, you'd make everybody have some financial stake. Give everyone who can't afford insurance vouchers (good for say $10k a year), all medical expenses come out of that money, and THEN catastrophic coverge kicks in. Whatever you don't spend, you keep. People would start being a hell of a lot more careful about how they consume their health care dollar. Open up insurance across state lines. Deregulate the health care industry. Make insurance deductible for everyone. Anything but this statist monstrosity that will only bankrupt us.

What drivel - Obama et all exceeded their powers - plain and simple and if they are allowed to win with health care, then they are unlimited as to what other parts of our lives they can control. This is about personal liberty which I would think every American would be concerned about. The government should not have the authority to tell us what to do- this is supposed to be a country of "we the people" not "the power of the government." The government should never be able to force citizens to do anything - they work for us we do not work for them! People like you and your lefty buddies are scary because of all the freedoms you are willing to hand over to the government. This is how socialist countries get their start - and if you have paid any attention they don't work out so well.

america the beautiful... remember it well, it will slowly disappear. i remember as a kid, trashy road sides, piles and piles of debris dumped at every creek, bridge, and road crossing, polluted streams and rivers, companies and corporations dumping chemicals wherever they wanted, remember love canal and hinkley, ca. on top of all that, have you checked the air quality lately or the level of pesticides in our food. well if you long for those days again, don't worry, this court is on its way to returning us to those yesteryears. without the laws, rules, and regulations that forced their demise, all the trash, chemicals, and pollutants will be back with a vengeance. sorry fellow citizens, you don't get one without the other... so say goodbye to america the beautiful, and hello unregulated national trash dump.

It was never a 'healthcare' bill. Its sole purpose was/is the aggregation of centralized power.

Yeaaahhhhh......right..because the free market has done such an up standing job so far......As long you never get sick or die Hey the current HC system is fantastic...I mean look at how many Americans are currently insured under it right now :D